An Almost Daily Weblog About Legal Developments Mostly In Massachusetts
(And Occasionally Elsewhere)

Tuesday, May 5, 2009

People And Guns Killing Each Other

You may remember this post from a few months ago about Bristol County's effort to argue that possession of an unlicensed gun entitles the district attorney to hold offenders without bail pending trial. A Superior Court judge didn't buy the argument. Neither did the SJC, as it revealed yesterday in Commonwealth v. Young, No. SJC-10147.

The question, again, is whether unlawfully carrying a gun is a "felony that by its nature involves a substantial risk that physical force against the person of another may result . . . ." Four of the five justices answer in the negative. They write that the crime of unlawful possession is "passive and victimless." In support of this argument, they persuasively tell us that "the motive of an unlicensed possessor is totally irrelevant to criminal liability . . . ." At the end of the same paragraph, they sort of go off the cliff, though: they tells us that a person who is lawfully possessing a gun might use it for an unlawful purpose. Maybe the point of this digression was edited out. Maybe I'm dense. I'm not seeing the significance of that.

Justice Cowin dissents. And her dissent is the more interesting of the two opinions. She makes it quite clear how she feels about all of this. She says:

The majority's "conclusion may well come as a surprise to those escalating numbers who are victimized, or who have observed others victimized, by the use of unlawfully possessed firearms, as well as to those whose reading of the daily newspaper communicates the stunning social costs of our failure to address seriously the problems associated with the alarmingly increasing use of such weapons."

"The court does not address effectively either the obvious relationship between unlicensed firearms and their use in violent behavior or the alarming proliferation of such weapons and their use in antisocial activity. Instead, the court resorts to a most subtle distinction between possession of an unlicensed firearm and the use of that firearm. Ante at. Reduced to its minimum, that is simply a reiteration of the tired slogan that 'guns don't kill people, people do.' We know this to be a dangerous oversimplification. The fact is that people kill people with guns, and in a substantial number of cases those guns are unlicensed."

"[A] fair reading of the statute would reject the pretense that a firearm is some neutral piece of equipment that is harmless in and of itself, and would recognize at a minimum the deadly sequence that so often follows on the possession of an unlicensed firearm."

The prose is pretty compelling. The certitude of the dissent, however, doesn't quite work. Because this is a tough issue. "Try as I might," Justice Cowin writes, "I cannot understand how possession of a firearm in violation of applicable licensing law can constitute anything other than a substantial risk that the firearm will be used to effect 'physical force against the person of another.'" That's a candid admission of where she's coming from.

But then Justice Cowin says: "When a handgun or automatic weapon is involved, the purpose of the firearm is to injure or kill; there is no other reason for that weapon's existence." In Justice Cowin's analysis, it looks like a person who lets her registration lapse on a handgun that never leaves her house and is used entirely for self defense in the event all hell breaks loose would have to deal with defending herself at a dangerousness hearing. And that doesn't feel right.

Part of the problem here is the squishy language of the statute. A "substantial risk"? That physical force "may result"? That can mean anything. And when you're talking about taking away a person's freedom, that can't be okay.

A rather hilarious final point is found in Footnote 13 of the majority's opinion: "We note that this case does not require us to decide whether the possession of a pipe bomb, silencer, sawed-off shotgun, or other instrumentality that is generally associated with violence and has little socially useful value, constitutes a predicate offense." That sentence would have made sense if the Court had left out two word: "pipe" and "bomb". A guy with a pipe bomb is dangerous. Period. End of discussion.